Receiving stolen goods
Let's say you own a pizza. I steal a slice of your pizza. Rodney thinks I acquired the pizza slice by legitimate means and has been epistemically responsible in acquiring this belief (so, he didn't see me steal it and I've told him it is mine). I give Rodney the slice of pizza and he eats it. I then fall down dead and you discover what I did.
Does Rodney owe you some money for that pizza slice? I take it that my moral intuitions are not unusual in giving me the impression that no, Rodney does not owe you any money. Or at least, any debt Rodney owes you is not one that can be extracted from Rodney by force. You would not be entitled to take some of Rodney's things, up to the value of the pizza slice.
However, if Rodney had not consumed the pizza slice, then my moral intuitions say that Rodney should return it to you - indeed, that you are entitled to take it from him.
And if he had taken just one mouthful, then he owes you the rest of the pizza, but not the mouthful he consumed.
What, however, if Rodney had incorporated the pizza into an art work - he has, say, covered it in gold and put it on a stand. Does Rodney owe you that work of art? Well, it seems to me that Rodney does now owe you compensation for the value of the original slice. If he sold the artwork for $1,000, he owes you, say, $2, if that's what a pizza slice costs.
Another example - an artist steals some paint from you and uses that stolen paint to paint a picture that I buy (and I buy it not knowing that it was painted with stolen paint). The artist then dies and his crime comes to light. Well, it seems clear enough to my intuitions that I do not owe you the painting or some portion of the painting's value. No, if the painting is worth more than the value of the paints used to create it, then I owe you the value of those paints, that's all.
It my intuitions are to be trusted about these cases, then, it seems that if you (in an epistemically responsible way) acquire stolen goods but then do something to them that destroys their original value, you do not owe the original owner anything.
And if you do something that reduces their original value, you only owe the remaining value, not whole of the original value.
If, however, you do not diminish its value or do anything at all with or to it, then you are obliged to return it.
By contrast, if you add value to it by incorporating it into something else or transform it in a value adding way, then you owe the original owner the value of the original, but no more than that.
It seems to me that if correct, this has important implications where intergenerational justice is concerned. If my grandfather stole your land and built a house on it and now it is worth a great deal of money, then at most I owe you the value of the original, unimproved land, not some portion of the value that it has been increased by.
Does Rodney owe you some money for that pizza slice? I take it that my moral intuitions are not unusual in giving me the impression that no, Rodney does not owe you any money. Or at least, any debt Rodney owes you is not one that can be extracted from Rodney by force. You would not be entitled to take some of Rodney's things, up to the value of the pizza slice.
However, if Rodney had not consumed the pizza slice, then my moral intuitions say that Rodney should return it to you - indeed, that you are entitled to take it from him.
And if he had taken just one mouthful, then he owes you the rest of the pizza, but not the mouthful he consumed.
What, however, if Rodney had incorporated the pizza into an art work - he has, say, covered it in gold and put it on a stand. Does Rodney owe you that work of art? Well, it seems to me that Rodney does now owe you compensation for the value of the original slice. If he sold the artwork for $1,000, he owes you, say, $2, if that's what a pizza slice costs.
Another example - an artist steals some paint from you and uses that stolen paint to paint a picture that I buy (and I buy it not knowing that it was painted with stolen paint). The artist then dies and his crime comes to light. Well, it seems clear enough to my intuitions that I do not owe you the painting or some portion of the painting's value. No, if the painting is worth more than the value of the paints used to create it, then I owe you the value of those paints, that's all.
It my intuitions are to be trusted about these cases, then, it seems that if you (in an epistemically responsible way) acquire stolen goods but then do something to them that destroys their original value, you do not owe the original owner anything.
And if you do something that reduces their original value, you only owe the remaining value, not whole of the original value.
If, however, you do not diminish its value or do anything at all with or to it, then you are obliged to return it.
By contrast, if you add value to it by incorporating it into something else or transform it in a value adding way, then you owe the original owner the value of the original, but no more than that.
It seems to me that if correct, this has important implications where intergenerational justice is concerned. If my grandfather stole your land and built a house on it and now it is worth a great deal of money, then at most I owe you the value of the original, unimproved land, not some portion of the value that it has been increased by.
Comments (125)
Rodney owes me the value of the slice, plus the statutory rate of interest that I could have earned had it not been stolen, had I sold it and invested the money. Rodney has to seek relief, if any from you or your estate. You can't sell what you don't own so the transaction between you and Rodney is void. It's up to you to obtain legal title, even if there is no paper. It's a legal fiction but the burden is on Rod.
Quoting Bartricks
No. He owes the value of the slice plus interest.
I got bored reading the rest. We have courts of law. We determine value of the slice in court. We have statutory rates of interest that we use to determine "increase." Not enhancement that could have been, but normal increase due to investment.
Just remember, interest compounds up, but also down. If your grandfather steels my grandfather's labor and you go to Harvard Law school because of it, while I join a gang, do meth and spiral down, then we have statutes of limitations (SOL), or "shit out of luck" that protects you and your grandfather. It's called "white privilege." But society may (should) feel a moral obligation to make me whole. But it doesn't. There is an open conspiracy to look the other way. The privileged like to wipe the slate clean and not punish the sons for the sins of the father. That's why morality says "We are not punishing you. We are just relieving you of some of the benefits that you enjoy, the privilege that you are not entitled to, as an entitled little shit."
Compare: People get old and die and generations move on. But nations live on unless and until exterminated. The U.S. is and has been "alive" since 1776. Virtually ALL of the Indian tribes that we treated with are likewise still extant. Our own Constitution provides that treaties shall be the supreme law of the land. Indian aren't entitled to mere money at law for the increase, but they are entitled to specific performance in equity. In other words, for one example, the Lakota are entitled to the Black Hills and environs, as well as money damages. However, the U.S. Supreme Court has only awarded money which they have rejected. Give them the land. Or be dishonorable. Our choice, because, whether might makes right or not, it is the way things are. The U.S. is dishonorable.
I would maintain that, IF, the pizza were still available in it's original state, AND Rodney were to suffer no additional loss, other than said pizza, it should be returned to the original owner.
However, if Rodney were to suffer a loss from the returning of the pizza, then the original owner should be obligated to either a) Accept payment for original cost of pizza, B) accept the loss and move on, or C) Compensate Rodney for all of the lost value of the pizza beyond its original cost.
Therefore, in application to lands "taken" (a preposterous concept, everything has been "taken" from someone is you go back far enough. Should I sue England for damages from the Acadian expulsion? Perhaps England can raise a case against Italy for the Roman Occupation. Just Idiotic. But I digress) Lands taken would be worth X. Improvements on said land would be worth Y. Therefore X-Y would be the balance owing to the original "owners" (bah ha ha) of the land. If the improvements are worth less than the original land, the land and some positive balance would be returned. However, if improvements are worth more than the land (likely) then the balance would be negative, therefore the land would be returned, along with an invoice for improvements made to same.
I have seen land be uncontested by local first nations, with the affected nation claiming no interest in the designated lands (they did not want them) initially. However, once substantial improvements had been made to the land (City put in a high end subdivision), suddenly the local first nation demanded the return of their ancestral lands, lands that in previous consultation had been described as "having no value to the first nation and are of therefore no interest to same." Due process had been followed and the city retained ownership of said subdivision. Courts (yes, it went to court) found in favor of the city, and the local first nation decried the travesty of justice.
Yeah, the law is like that. Notwithstanding the fact it is based upon that lively and exciting field of philosophy.
Quoting Bartricks
Actually, I did. But like a loser in a court case, you didn't like what you heard. :lol:
Quoting Bartricks
Funny you should call the law counterintuitive on that one. :smirk:
Quoting Bartricks
Don't follow me. Follow the law. Or don't. Your call.
My intuitions agree with that - if the original item that was honestly acquired is in its original state, then it goes back to its original owner and the loss has to be born by the honest acquirer.
But if the original item is destroyed by the honest acquirer (as in the pizza eating case) or reduced in value as in the one bite case), then the loss has to be borne by the original victim.
Seems arbitrary, but in both cases we have someone who has done nothing wrong having to bear the cost due to the lack of the original wrongdoer.
And yes, I agree with this:
Quoting Book273
You say:
Quoting Book273
Yes, I think time makes a difference - that is, the mere passage of time can make a difference to how we should behave in light of an injustice. Quoting Book273
I suppose that could be another way of doing it. Applying the intuitions from the pizza case, any devaluation of the land is not something the honest acquirer owes to the original party - that is, any loss is the victim's to bear. Whereas any improvement belongs to the honest acquirer. As in the 'turns the pizza slice into a work of art' case - Rodney owes the original owner $2, not $2,000 (or alternatively, the original owner gets the slice but now must compensate ROdney to the tune of $1888).
Quoting Book273
Yes, it sounds as if the courts were quite right. I mean, those who might be tempted to argue it was a travesty of justice would, if they were consistent, agree that it was also a travesty of justice that the original owners did nothing with their land for so long, and thus deprived the rest of us of the benefits that might flow from its development!
If you honestly acquire a stolen car and then crash it, that's the same as honestly acquiring the slice of pizza and eating most of it. The original owner is entitled to the crust that remains, but not entitled to have you pay for what you ate.
Isn't that what your intuitions say about the pizza slice case? Intuitively Rodney does not owe you the cost of that pizza slice - or at least, the debt is not of a kind that force can be used to extract.
The same applies to the car.
Another scenario: imagine that you honestly acquire a stolen vehicle. Well, the original owner is entitled to it back.
Does it make any difference if it transpires that the car was stolen from outside a bar and had the original owner driven it, he was so steaming drunk he'd have crashed it and written it off? That is, do you now 'not' owe the original owner the car as had it not been stolen the car would be in a worse state than it is for having been stolen? No, you owe the original owner the car.
That is how it works. If you want to find out the right and wrongs of these matters, my method is the one to be adopted - that is, one thinks about relevantly analogous cases about which parties are not heavily politically or financially invested.
:up:
Quoting tim wood
I think the original owner is entitled to the value of the paint, and interest, but not the value of the painting. If the painter is the thief, he could be liable for punitive damages that are more than the value of the paint plus interest. If they painter is an innocent purchaser for value, he'd just owe for the paint plus interest and could keep the enhanced value after sale.
There are exceptions to the general rule when the original victim had specific and known plans, and accrued known losses (like a particular investment that would have earned more than statutory interest). It's been a long time, but you are right about the general principle and Bartricks is wrong, at least by law.
Quoting tim wood
:100:
:100:
And yes, that's right Timbo, I am a child and I don't know what I am talking about and the method of using thought experiments about relevantly analogous cases is really stupid and I'm dumb and stupid and an idiot and not a professional philosopher at all. Good points. All good points and well worth making.
Buyer beware. :smile:
Or you could just decide that I am wrong about everything and work from there - see how that goes.
You'd be surprised at how much the law (both statutory and common) has found it's moral underpinnings in thousands of years of philosophy. You wouldn't believe how all the various degrees and elements of crimes, mens rea, etc. and civil considerations regarding damages, etc. are really just legal efforts to address the nuances of individual cases that have arisen repeatedly over the course of time. Attorney's, representing both sides (some of them brilliant philosophers), and judges (same) after deep philosophical consideration, came up with what we call "precedent." Then there is statutory law that came about through a messier, dumber, but nonetheless, judicially reviewed process.
Perfect? NO. But I was making philosophical contributions. You just didn't agree with them. I suspect that you don't like the fact that you can't reset and clean a slate as long as you didn't know. Even though justice places the burden upon you to know. You would like to forget the original victim and "tough shit to him." You would like to be able to launder the goods by ignorance. But that is not how the law works, at least before the SOL.
Bartricks work in a bar, but not before the bar.
And I engaged in some of that philosophical reflection, did I not, in the OP - and then you ignored it.
I didn't ignore your post. I disagreed with it. You didn't like that. Just because your moral intuitions are wrong doesn't mean I ignored them when I disagreed with them.
Do you know what the most reproduced article in philosophy is?
Then please explain why Dutch law protects the buyer of stolen goods if he acted in good faith (barring goods registered in public register). Good faith would be he wasn't aware and was, given the circumstances, not required to be aware the goods were stolen.
And legality and ethics aren't as related as you make it out to be. Laws are about economics more than about ethics.
And that is what @James Riley did. He thought about your analogous example, and came to conclusions different from yours. What appears to be the case to him isn’t what appears to be the case to you. How do we resolve this?
As for me, I agree with your conclusions but not the principles you derive. You got this:
Quoting Bartricks
From looking at a slice of pizza. I don’t think that’s very analogous to land. It’s very difficult to increase the value of a slice of pizza but not nearly as difficult to increase the value of a plot of land for one.
You do this weird thing where you derive principles out of individual appearances, and then never revise the principles when further appearances contradict. For instance: you derive the existence of an OOO God by reasoning from a set of appearances, and never revise the position when it contradicts much clearer appearances such as “rape is an injustice”
Put simply, you conclude too much from too little. Like someone who eats a strawberry and an apple then concludes “all red things are sweet and healthy”. Then when someone eats a poisonous red berry and dies you conclude “since all red things are sweet and healthy, this person is not dead, merely pretending to be”, refusing to revise the conclusion you initially drew no matter how much evidence to the contrary appears afterwards.
You probably don’t think this is the case. Which brings us back to how we resolve contradictory appearances (either contradicting with your own, or others’ appearances). I keep asking you how to resolve these and you cannot respond. Because you don’t have a basis, you just discard or accept certain premises in order to forge the conclusion you want. Nothing more.
I agree - but there is too wide a scope for disengenuity. I buy a top range brand new bike for £50 online. Turns out it was stolen. How could I possibly have known? Hmmm.... I think there's a case for strict liability in the law, i.e. it makes no difference what I did or didn't know. But good faith can be a reasonable excuse when I really could not have known.
It could be that the Dutch, like Bartricks, are wrong. It sounds like the old legal principle "finders keepers, losers weepers" that we use in America on the kindergarten playground. I wonder what, if anything, the Dutch do to make the victim whole? Maybe it's a hold-over from Dutch Colonialism? Not sure.
Quoting Benkei
I didn't say anything about law and ethics. I was talking about law and philosophy. I also specifically referenced the messy and dumber process of making laws (statutory), where economics play a larger role. That is one reason we have common law, where judges can act in equity. I also specifically stated that none of this was perfect. Money can buy judges. Some judges are stupid. Some are rapists and drunks. I was talking about the likes of Learned Hand and others. Still not perfect, but thinkers nonetheless.
Sometimes it is good to put yourself in the shoes of the victim instead of the beneficiary of wrongful acts. Those who have benefited and don't want to be grateful and graceful and compensatory like to put them self in the position of what they believe is an innocent third party purchaser for value. That's part of the open conspiracy, where we want to clean the slate and start over with what he have as the baseline. Completely ignoring how we got it.
It's called "Philosopher King." I like it. As long as I'm the King. Maybe if I go out and steal a bunch of shit, or if I have it laundered, then I'll be on my way! Yeah, that's the ticket! I'll buy shit from America that they stole from Indians and slaves. Maybe even shit made in Asia for 14 cents an hour! Cool. Now bow down before me, serf!
It's not just the Netherlands, it's continental Europe. Definitely since the code civil and possibly since the Codex Justinianus depending on how old caveat emptor is exactly.
In any case, I don't recognise anything of what I explained in your childish simplification except an idiotic arrogance that the system you grew up with is the only sensible one.
Edit: actually if you think about it also makes more sense. It only requires the original owner to sue the thief to be made whole. In the other case, the original owner sues the buyer, and the buyer has to sue the thief, which is cumbersome and a waste of time.
Like I said above, buyer beware. Not seller, not victim: buyer.
Quoting Benkei
How worse the state that backs the hand of a thief, or backs the buyer who benefits from theft? That buyer bought on the street because it was cheaper than going into a store and buying legit. But even then, pawn shops know the drill. At least in the U.S. If that is idiotic arrogance, I'll take it. Too bad we don't protect the victims of U.S. gunboat diplomacy and imperialism. We are like the Dutch, et al, that way.
Go back and read again what I wrote about good faith, because this is again a blatant misrepresentation of what I said. I would think as a trained lawyer you'd actually be interested in realising there are different approaches possible.
The thief doesn't have that right but it doesn't necessarily mean ownership isn't vested by the new buyer as long as he can demonstrate good faith and it doesn't concern a registered good.
Children cannot enter in valid contracts because they do not have the necessary will for offer and acceptance.
And there's no problem, it's been working fine for at least two centuries.
Go back and read what I wrote acknowledging the BFP. That does nothing for the victim. Nothing. Justice doesn't care about a buyer's good faith. The buyer should beware, and if he's not, tough. His recourse is against the person he had the transaction with. In other words, I did NOT misrepresent what you said, blatantly or otherwise. I specifically calculated the good faith, as I did with Bartricks, and found it wanting.
You not only need offer and acceptance; you need consideration. The buyer can give money but the seller has nothing to give in return for the money. Thus, there is no contract. If the buyer gave money for something the seller did not have to sell, that is between the parties.
Quoting James Riley
Just no. That's a purely Anglo-Saxon thing, which everybody in the rest of the world scoffs at.
You are wrong, Benkei. It does not work perfectly well in the "real world" whatever that is. I can wrap my mind around the concept of good faith perfectly well. I just recognize the recourse is against the person who sold me something he did not own. I can't leave on the victim to deal with the thief. When you say "the owner is usually . . ." that is BS. First of all, "usually" doesn't cut it. It presumes the thief has resources to make the victim whole. Then it presumes the victim has the resources to pursue the thief. Then it presumes everything has monetary value (so I get $100.00 for the watch my dead wife gave me on our wedding day).
A society doesn't deter crime by making it lucrative. To the extent non-U.S. countries deter crime, it is by making theft unnecessary with social programs; not by protecting BFPs.
Quoting Benkei
Show me where in the world a contract exists with offer and acceptance alone, but without any consideration? I want to make sure I never do business there.
That's not contract.
It recognises there are two interests and property is simply not considered so absolute I guess in continental Europe. There's a few rules actually. If you buy something that wasn't stolen (someone legally borrowed it and sold it on) the good faith works as explained. In case of theft, the original owner can reclaim his good within 3 years. However, if I bought stolen goods in a store that would normally offer such goods, that rei vindication no longer works and, provided I bought it in good faith, would become owner.
Quoting tim wood
Children cannot enter into contracts, so any contract of sale would be void and an original owner can reclaim any way.
Quoting tim wood Yes. Everywhere in Europe actually.
You can enforce a promise in the U.S. too. But you need offer, acceptance and consideration. Same as in the Netherlands: https://dutch-law.com/acceptance-dutch-law.html It's just not called "consideration." But it won't be presumed people are contracting for nothing.
I don't know the US court system wel enough but in the UK there are no civil remedies to enforce a promise because its not a contract. You only have equitable remedies. I don't think the US has equitable courts though so how does that work? Or can you go to civil court to get an equitable remedy?
Okay, so the Dutch don't contract. Got it. Hmmm. Give me an example. "I offer something for nothing." And "I accept your offer of something for nothing." We're good. :roll:
Quoting Benkei
Our courts act at law (Constitutional/Statutory) and in equity (Common Law, precedents).
P.S. A gift is not a contract. Though, in the U.S., one can have detrimental reliance on the promise of a gift. So, if you promise to give me $100k for nothing, and I accept, telling you I am going to start the construction process on my new house, intending to use the gift, and you don't stop me, then I have detrimentally relied upon your promise. A court in equity would ask if it was reasonable for me to be so stupid as to believe someone was going to give me $100k for nothing. If so, then you might have to pony up. But it won't be in contract.
A gift is not a contract. If you induced me to rely on you, without consideration, we have fraud if you knew you weren't going to come through, and civil liability if you didn't know.
P.S.S. As to my alleged U.S. myopia, I think the principles I have laid out existed in the merchant bazaars around the world, long before the Spanish set foot in Hispanola.
That would be a question between you and the seller. Why did you buy from him at that price, instead of elsewhere at a different price? Regardless, that is no concern of the victim
Quoting Book273
People who buy stolen goods aren't honest. And, even if they were, it's on them, not the victim to unscrew their mistake. And yes, it is their mistake. They should pay for their mistake. Not the victim. To make the victim pay is ridiculous and unjust.
.
Anyway, you seem to have precisely nothing to say of any philosophical interest. Stop Barty baiting and engage with the arguments.
I guess it's hard for a US citizen to imagine things can and do work differently elsewhere. We have a different definition of contract that doesn't require consideration. You know, like the UK did before the 1500s. Or are you going to pretend they didn't have contracts before? For instance in Roman times.
And Anglo-Saxon law still has special contracts passed as deeds, which are still contracts proper. So even in your own legal system there's recognition of contracts that do not contain consideration.
Like I said, it's not a U.S. invention. It's been around since Christ was a Corporal, and long before that. The essence of contract is that you don't give or get something for nothing.
Quoting Benkei
I asked you to give me an example. Gift is the best you can do. Gift is not contract.
A contract is an agreement, even in the Nederlands. Consideration = something. Wait, let me repeat that: "Consideration" = "something."
Now, once more, engage with the arguments in the OP, Barty Baiter
I'm thinking it might be confirmation bias. If you are standing on the bones of victims, one might contort morality to justify it, and call that moral. Just a guess. "Aww shucks! It weren't me what done it!"
But not that it matters, an intuition is a mental state with representative contents. And in the case of a moral intuition, the content in question is an evaluative or normative proposition.
And one appeals to them in making any moral case for anything. And using thought experiments is the method moral philosophers use to elicit them. And when it comes to a controversial issue on which people have strong opinions and much emotional and other investment, applying one's reason (which the faculty that creates intuitions in us) to thought experiments about relevantly similar cases is the most reliable way of making progress.
Thus, if most people's moral intuitions about the pizza case are like mine - that is, if they represent Rodney not to owe anyone anything if he acquired the pizza slice honestly and then destroyed it by eating it - then this is highly significant.
The alternative, when it comes to issues of intergenerational justice and so on, is shout and stamp and scream and bash each other over the head. Identify your tribe, find out what your tribe believes, then scream it.
No, if it is refused, there is no contract, by definition. If it is accepted without consideration, it is a gift. There is no contract.
And you must have a misunderstanding regarding the definition of "consideration." The first time a human said "I will give you this for that" and the other human said "okay." You had offer, acceptance and consideration. That occurred thousands of years before 1500.
By Anglo-Saxon definitions. If I accept a gift, there was a gift offered and accepted, which results in a valid contract under Dutch law and every other European jurisdiction. In fact, even without acceptance a gift can be enforced as a unilateral contract ("eenzijdige overeenkomst"). It's time for your to stop trying to correct me on Dutch law. You simply don't know what you're talking about.
Another example is an amendment to a contract where the scope of work doesn't change but the contractor simply asks for more money because of underestimated circumstances. No consideration either, valid under any continental jurisdiction as a contractual amendment and therefore a contract. Not so under UK law (barring some exceptions even there under UK law that no consideration is required). It's fine if you don't believe me but repeating the rules of your own jurisdiction is just stupid.
A normative proposition is a proposition about what is to be done - it concerns action - and so it would be about the rightness or wrongness of an action. Evaluative concerns goodness and badness.
Judgements are not the same as intuitions, though they're often based on them. I judge that there is a cup on my desk on the basis of my visual impression of one. The judgement is not a visual impression, though it is based on one.
An intuition is a kind of impression, albeit a rational impression, not a visual one. And we base many of our moral judgements on them. However, one can have a moral intuition that an action is right, yet judge it to be wrong. So the two are not the same.
That's why simply expressing one's opinion - that is, expressing one's judgements - has no value, philosophically speaking. For they have no probative force at all - one's judgements are not evidence for anything. The impressions on which they are based may be, but the judgements themselves are not.
So, simply judging that Rodney owes the original owner of the pizza slice some money and expressing that judgement -as James Riley did above - is of no philosophical value whatsoever.
By contrast, if it is the case that most people's moral intuitions represent Rodney to owe nothing, that is good evidence - though not decisive - that Rodney does indeed owe nothing. There's nowhere else to go for evidence - all appeals to evidence are ultimately appeals to rational impressions of one sort or another, and if they're widely shared and we have no reason (itself supplied by other rational impressions) to doubt that these impressions are tracking reality, then one has made a good case.
If you want to engage philosophically with what I have argued, then you'd need to argue either that our intuitions are not widely shared about such cases, and/or come up with other thought experiments that elicit contrary rational intuitions and that seem no less analogous to the controversial cases about which insight is being sought.
Help this Anglo-Saxon dummy from America: If you offer to give me a gift and I agree to accept it, then what contract is there to enforce? Unless and until there is detrimental reliance (i.e. consideration) then there is no valid contract. I suspect you don't know what you are talking about. :roll:
Quoting Benkei
So you can unilaterally amend a contract in Dutch Land, without a provision therefor in the agreement? How's about you just say "Hey, I'm not going to pay. But thanks for building this house for me." Is that how you do it over there? No, it's not. I don't care how long you've practiced law in the Neverlands. You have offer, acceptance and consideration. The Dutch aren't stupid.
Again, here is your argument: "I offer you this for nothing." To which I respond "Cool. I accept that for nothing." That's called a gift. Not a contract.
If there are incidentals, or cost over-runs, or cost-plus clauses in the contract, or provisions for contingent renegotiation or a change in consideration, then there has already been offer, acceptance and consideration. If not, then the contractor can ask until he's blue in the face. Unless and until there is a renegotiation (new offer, acceptance, consideration), then the the old offer, acceptance, consideration will control.
I'm not repeating the laws of my own jurisdiction. I'm now begging you, on bended knee, to show me a contract that lacks consideration and which is not a gift. What is there to enforce? Nothing.
Just draw one up for me. Real simple, because I'm an American and we are notoriously stupid.
you forgot to also demand ridiculous amounts of money in compensation for all the bad stuff that happened as a result of the initial crime. Because, as the latest perspective has it, had said crime not occurred, Nothing bad would have ever happened to anyone affected by said crime, ever. So everything bad since then is the result of said crime and needs to be compensated for. It does not matter who did the subsequent crimes or bad things, only that someone else first did something bad too. Then it is all the fault of the first cause. Lastly, never mention the regular rates of bad things that happen to everyone else, and certainly do not remove those rates from your complaint and seek recompense for the rates above and beyond general population rates; that would violate the fundamental premise that all bad is based on first cause, nothing more.
Generally it has to do with detrimental reliance. If the recipient reasonably relied upon the pledge to his/her/its detriment, then yes, they can sue for damages.
But if you offer to give me something and I accept, then renege, what are you going to do? Sue me and try to force me to accept the gift? Unless you, as the giver, reasonably relied upon my acceptance, and did so your your detriment, there is no enforceable contract.
If there was consideration (naming the building?), then it's a contract that can be enforced. The issue again: damages.
But apparently where lives, there is an enforceable contract in the first and second instances. If he offers me a gift and I accept it, then reject it, he can force me to accept it, or force me to pay him some money for my failure to accept it. Or if he promises to give me something for nothing and I accept, I can sue him for failing to give it to me, or I can force him to give me something for nothing. I don't know what the damages would be, since I haven't detrimentally relied upon anything. Apparently that doesn't matter.
Yes, the reasoning behind such claims does seem palpably bad. I think this can be illustrated by focusing on cases where the reverse is true - that is, where it is obvious that a crime has benefitted the victim.
For instance, let's say that someone has cut the brake cables on my motorbike, such that if I was to ride it I would certainly crash and die or be horribly injured. However, someone steals my motorbike on a trailer before I get the chance to ride it. That motorbike is then sold or given to some innocent third party and the original thief dies. Well, it seems clear that I am entitled to the motorbike. No one, I think, would have the intuition that as I was made much better off by the theft, that now the motorbike no longer belongs to me, that my benefitting from the crime somehow operated to reduce right to the motorbike, or taht I am only entitled to the value of the smashed-up motorbike that my actual motorbike would have become had it not been stolen.
And if that is clear in that case, then I see no reason why the same should not apply to any disadvantages that would accrue to me either. So if, say, the brake cables were fine and I was planning on riding the bike to an important job interview - an interview I would have got if only I'd turned up - then when my bike is found, I am entitled to the bike, but not compensation for having failed to get the job.
And I think that generalizes. Innocent victims and innocent benefactors do not owe each other compensation for the harms that befell them due to the crimes committed by others. So, if Tom stole my motorbike and you bought it from Tom innocently - and I thereby was prevented from attending an interview for a job, whereas you did attend an interview for a job (and got the job), I am entitled to my motorbike back, but I am not entitled to your job - even though you wouldn't have got the job had by bike not been stolen from me and given to you.
So yes, many of these claims for compensation for past injustices - or rather, for the costs that came in their train - are unjust, at least if my intuitions about these sorts of relevantly analogous case are correct.
I don't care that you reject it - that's just you expressing yourself, isn't it! Anyway, a debate about what exactly an intuition is - which, no matter what I say about it, you will reject due to the fact I said it - is not on topic. That is a topic in moral epistemology and although I am appealing to moral intuitions, you are not engaging with the topic of this thread if you insist on making this about more general issues in epistemology. That's like insisting that because I am using words to express myself, we need to have a debate about the philosophy of language before we can proceed.
The simple fact is that no matter what moral issue I was discussing here - whether historic injustices, abortion, capital punishment, whatever, you would have made the same points.
You break into my house, wreck it, and steal a bunch of stuff. You are caught, my stuff already disposed of, and admit your guilt, thereby reducing your sentence. I, being so traumatized by this ordeal, then write an international best-seller, based on my horrible experiences of violation from your theft. Following the logic that all that befell me after said crime is your fault, I should be expected to pay you reasonable compensation for my success, because, had you not interceded with your crime, my success would have never occurred, having nothing to write about. Would anyone seriously pursue this line of retroactive compensation? And if not, why are we doing so in the other direction? If the practice cannot be applied universally then it should not be applied at all.
I have a true story to represent the Case you requested of Bartricks. Hopefully you find it sufficient to work with.
I had a friend, many years ago, living in Edmonton. He had recently signed a one year lease with his land lord and the next month purchased, on in store credit account, about $15000.00 worth of furniture, which he put into his apartment. About three weeks after this, he decided to move to Chicago to be with a girl he met online. Rather than admit his change of plans, he told the land lord that he needed to fly to Australia right away because his vacationing parents had been in a car accident and his mother was likely to die from her injuries in the next few days. The landlord believed him, and agreed, furthermore, to provide an $8000.00 emergency loan, with the furniture as collateral, so my friend could leave immediately to see his dying mother. My friend took the money, moved to Chicago, and never looked back.
Should the landlord, who had acted in good faith, but had, arguably, received essentially stolen goods, as no money had ever been paid for the furniture, be held accountable for the cost of the furniture, in addition to already losing $8000?
What if the landlord, realizing he had been taken had sold the furniture for $25,000? Should he then return the $15,000, all of it? None of it? or pass it forward to the people he sold it to, claiming that they were in fact the receivers of stolen goods, and therefore all costs should be fed to them? Additionally, as the $8000 was taken by fraud, anything he purchased with it would then be proceeds of crime, so those people, innocent merchants, too would be considered recipients of proceeds of crime and responsible for such. I trust you see where I am going with this.
I stand that my friend is a douche bag, and solely responsible for both the initial $15000 theft, the next $8000 theft, and the violation of the lease. The landlord should not be held to compensate for the initial theft, nor should anyone who purchased furniture from the landlord as he attempted to recover his lost $8000. Neither party would have any idea that the furniture had not been paid for until months later.
Emphasis Added. Wow. I do live in a different world.
You might recall when Bernie Madoff was handing stolen money from one innocent nvestor to another, they were required to return it to the rightful owner, so being a good faith holder of funds doesn't protect you just because you're in good faith.
Your friend defaulted on the credit card, if he never paid it back. It's not considered theft. It's a debt that he defaulted on. There's no collateral involved between your friend and the store. The landlord could keep the furniture or sell it and keep the proceeds. But then, that's in Edmonton. Not in the US.
Yes, they could repossess the furniture. In that case ownership belongs to the store, not your friend. And he used the goods as collateral for the landlord. The landlord is left holding the bag -- well, not exactly. He (the landlord) lost $8000. Your friend was a thief. :meh:
Wow.
Wow, you're a terrible lawyer who can't read and apparently doesn't know how it's works in your own jurisdiction. I didn't say there was a unilateral amendment. I said there's no consideration. The contractor already promised to do what he's signed up for. That it turns out more difficult is neither here nor there with respect to consideration. So the other party agreeing to pay more is not an enforceable contract under UK law or US law. Still, quite a common occurrence.
For the umpteenth time. Other jurisdictions don't require consideration for a valid and enforceable contract - yes, that's not a contract under Anglo-Saxon law, no, we don't care because those laws don't apply here. Stop projecting the shit system you have in the US.
It's not even as if consideration hasn't been questioned for years already within your own legal system as messy and outdated. Plenty of scholars who argue in the US that a clear intent to be bound by the terms by one party and detrimental reliance on the part of the other party should be sufficient - mostly because half of your judges are shit and don't apply the doctrine of consideration correctly to begin with. And you'd know that if you were still active in the field.
I really don't get what's so difficult to grasp here. Different countries, different rules.
For the umpteenth time, you failed to provide an example. That is because you don't know what you are talking about. If you disagree, then all you have to do is give a simple example. Here, let me help you get started. I assume we can agree that it takes at least two parties to agree. One party is "A" and the other party is "B". "A" offers. What does "A" offer? Help me out here. "B" accepts. What did "B" accept? Did he accept something for nothing? Or did he accept something for something? You take it from there. I'll wait.
Quoting Benkei
I'll wait. I'll be particularly interested to see what a court would enforce in this hypothetical, valid, enforceable contract.
Quoting Benkei
I already taught you about detrimental reliance. That can occur in gift or contract. So don't start trying to pull yourself out of the hole you dug by now admitting you have learned, while at the same time denying it.
Quoting Benkei
I'll wait.
Look, if you people call a horse a cow, then okay, we have a definitional issue. You can call a table a contract if you want.
But if there is no unilateral amendment, then there IS consideration. DOH! It takes at least two to agree, two to contract. Consideration is what they agree to exchange. If there is no unilateral amendment, then what was given or foregone to permit the change in the original agreement? Whatever that was, was the consideration, either as permitted in the original contract, or by amendment.
Now I am about to teach you a lesson, so please pay attention and learn. You said:
Quoting Benkei
BINGO! That is the consideration! Read your own words again: "The contractor already promised to do what he's signed up for." Offer, acceptance, consideration.
Quoting Benkei
Yes, it IS. If they AGREE then it is enforceable. If they do not agree, then it is not enforceable. You know why? Because there was no agreement. There was not contract. Gift or contract, your choice.
But I'll await you example of a contract without consideration. I'll be particularly interested to see what a court would enforce in this hypothetical, valid, enforceable contract.
Jesus, I'm talking to a lawyer who doesn't even understand the doctrine of consideration while being raised in an Anglo-Saxon country. I'm done.
There's x and there's what someone could do with x. Both seem critical to justice.
Quasi-contracts, unjust enrichment, quantum meruit. Is that a sufficient topical reference or do we really need to go down the path of the history of inadequacies of mutually bargained for consideration as the only method by which one party can be obligated to pay the other in the absence of a tort?
And here is random cite in case you need a nudge.
Emphasis added. And there you have it. I'd ask you to explain that to Benkei but he is done.
Quoting Ennui Elucidator
You just made my point. I don't need the nudge. Benkei does.
P.S. You forgot detrimental reliance in your hornbook recitation.
You already mentioned deterimental reliance, i.e. promissory estoppel, so there was no need to mention it, let alone argue about it. Although both promissory estoppel and quantum meruit have similar origin stories (consideration replacements), only quantum meruit involves enforcing a claim against someone who did not participate in or solicit the behavior of the plaintiff.
In any event, how about "Market Overt" for a more on point reference for purposes of the OP.
Like gift, it was used as a stand-in for all the rest. Meaning, all the rest was not illustrative on the argument about offer-acceptance-consideration. Neither I nor Benkei was talking about the case where there is no agreement (no meeting of the minds).
Quoting Ennui Elucidator
Yes, it was understood that some people think the burden is upon the victim and some don't.
Okay. I'll quit waiting.
I got that (and saw your amusing quip about Dutch Colonialism), but it seems at least a little bit instructive to consider the actual history of an idea that supports "losers weepers" with respect to the rights of a person in a good acquired from a person that had no rights to transfer the good. But if we are just going to hand wave and dismiss such trends because they don't sit right with our intuitions, I suppose there is nothing more to be said. I question, however, whether strict adherence to caveat emptor in a worldwide market would be a net social good. What would your due diligence look like for buying lettuce at the supermarket? Is it that you suspect that triviality of the claim would preclude litigation against the buyer (and so is unworthy of legal consideration) or that you really want to examine the manifests for the lettuce shipment?
In any event, your challenge to Benkei about enforceable contracts with one sided consideration from the offerer, offer, and acceptance from the receiver hasn't been fully explored. Assuming for a moment that you don't think either quantum meruit or promissory estoppel qualify (consideration, even if trivial, is made by/expected from both parties to the claim), how about the enforceability of charitable pledges?
That is how I perceived the OP. Who knew it would lead where it went? (Rhetorical question.)
Quoting Ennui Elucidator
I think the social good comes from the state mandating that the public help it do it's job, or suffer the consequences. Pawn shops are notoriously on their toes, and that creates a black market where buyers should know better. There is also insurance. A buyer can cover his losses if he buy's stolen goods. The insurer levels premiums and proposes protocols to prevent claims. That way the legit grocery store, while still having the incentive to buy lettuce from reputable sellers, can pass the cost on to consumers.
One way around this (as I mentioned before) is to have the state provide basic services such that theft is not as prevalent as it would be where people feel the need to steel. And if you are a victim of theft, you can always have the state fill the gap. But I tossed that out back there in anticipation of the argument that the U.S. has a high crime rate. It does, but that has nothing to do with burdens of theft being placed on innocent BFPs.
Quoting Ennui Elucidator
I thought that was covered by our discussion of gift (and detrimental reliance), which I intended to cover all the other nuance. If I offer to give you something for nothing, and you accept, then you will need to have detrimentally relied upon my promise in order to recover.
No you wont, and that was the point of mentioning charitable pledges which are increasingly found to be enforceable in the absence of consideration.
Here is a random quote for you:
I return to this quote for a moment because it suggests something that I didn't get to flesh out. When you go into a contracts class (and get a contracts book), it is generally organized as setting forth what a contract "is" (mutually bargained for consideration), the ways in which it is established (offer, acceptance, revocation, completion, etc.), the defenses to its enforcement (mistake, unconscionability, etc.), remedies to breach (specific performance, monetary damages, injunction, etc.), and then all of the exceptions and new causes of action sounding in contract that don't actually meet the strict definition of contracts or use legal presumptions/fictions to satisfy contract requirements. Unilateral contracts, promissory estoppel, quantum meruit, charitable promises, etc. The point here is that if you just opened a hornbook, you'd see examples of enforceable contracts that did not involve mutually bargained for consideration. The "law" of contracts has to exist in a context of a broader sense of social justice (call it "equity" if you want) and its language can (and has) been used to create enforceable rights that would have been unheard of 200 years ago.
Emphasis added.
Like I referred to above in reference to the state: it can do whatever it wants. A state can exercise eminent domain and can even unilaterally void contracts as a sovereign. It can also place the burden on innocent buyers instead of innocent victims. (The U.S. is lucky in that it has a "takings" clause and federal tort claim waivers of sovereign immunity and other protections, but I digress.)
The point here is, the Restatement is simply acknowledging that the state can do the exact opposite of what we were talking about. The plaintiff need not prove consideration (it wouldn't anyway, with a gift) or detrimental reliance (gift). That is imputed by the state on public policy grounds. Nor is there a burden on a defendant to discount detrimental reliance. It is presumed:
"Charities and nonprofit organizations rely heavily on contributions from their constituents for financial support. Donations take many forms—from ticket sales to subscriptions to fundraising auctions. Often, however, patrons make significant donations through pledges to be fulfilled after death by their trusts or estates. Depending on the magnitude of the pledge, an organization may include it as an asset in its publicly-available financial reporting and rely on it for planning and budgeting purposes. But is a charitable pledge legally enforceable if the donor's trustee or personal representative refuses to honor it?" https://www.millernash.com/firm-news/news/enforceability-of-a-charitable-pledge-agreement-against-a-donors-estate-or-trust
Note the distinction between the donor and the trustee or personal representative. That is another public policy reason since you don't have a party to the contribution to testify. Their actions are stipulated in the contribution. It's similar to a dying declaration or a statement against interest.
In short, you still have a gift, but it's been transmogrified by the state into a contract. Not the other way around.
It's been over thirty years since school and over twenty since practice, but nothing in that paragraph in any way discounts what I argued. All of it relates to a failure of the meeting of the minds, and they all spring from enforcement actions and defenses. They are incidents where a contract is created or discounted, at law or in equity through efforts to enforce and defend. At no time is a court saying anyone anywhere is entitle to something for nothing. (Except gift, as already addressed.) There is always something and that something is consideration. If there is no consideration, then there was no contract and nobody is entitled to anything (except maybe fees and costs :wink: ). Can it be imputed? Yes, but something is there, or there is no contract, oral or written, at law or in equity. And that is the case the world around for thousands of years.
Contracts are ONLY creations of the state as they are understood to be enforceable agreements between the parties. Did you have something else in mind?
No, they are not. States can create contracts, but so can private parties: "An agreement between private parties creating mutual obligations . . ." id. Enforcement does not entail creation. And enforcement only comes after interpretation. And interpretation only comes after disagreement.
That kind of shell game can occur with straight up corps, too (C and S, etc.). From the grantor's perspective, though, it is or can be a write off. It seems they are talking about pending grants, and not current. But you get my meaning. If it's irrevocable then it should be a write off. Another consideration easily imputed by a court.
I'm sure you parsed this hair, but for anyone who didn't, the agreement includes offer, acceptance, consideration. The obligation referred to is that which is enforced, often after a finding and ruling in judicial review. This can include any of the equitable rulings related to the education provided by , as well as statutory application (law).
I can understand why the Constitution would apply to executory and executed (but disputed) contracts. Regardless, common law is normally sufficient for a ruling without resorting the Constitution. In fact, I've never heard of the Contract Clause as an issue between private parties. Could be, though.
:up: Could very well be. The only contract issues I dealt with involving .gov were USFS "get out the cut" and BLM grazing allotment stuff, and I wasn't deep in that from a contract perspective. Most of my exposure was Bob vs. Joe. :grin:
What if the a buys something at the store, and has it stolen from them? The person who got the stuff that was stolen from the kid would be receiving stolen goods, right? And there would be a legal obligation to return the stolen stuff to the kid?
That's my intuition too, but is there a problem where if we codify that we create unintended consequences?
Quoting Bartricks
Quoting Bartricks
And furthermore you use said codification to come to further conclusions
Quoting Bartricks
in cases that are barely analogous.